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Portsmouth Residents Zone PCN, Invalid TRO
krenwick
post Mon, 22 Oct 2018 - 14:16
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From: Hampshire UK
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Dear PePiPoo Members,

I received the following PCN on 05/07/2018.




and then also a NtO on 07/08/2018.




The location is here (Google Maps).
An overview of the bay in question is here (Google Street View).

The markings appear to be some sort of hybrid with 2 bars at the ends yet no individual bays.
Interestingly the TRO seems ambiguous - as mentioned before in this thread.

Using that I responded as below 02/09/2018



Not altogether unexpectedly Portsmouth CC responded 17/10/2018.





For anyone still with me, would you fold your tent at this stage or continue to a tribunal? All opinions obviously very welcome.
I can post more detailed photos of the area if that helps.

Kind regards,

David
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post Mon, 22 Oct 2018 - 14:16
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krenwick
post Mon, 10 Dec 2018 - 10:51
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From: Hampshire UK
Member No.: 1,575



Morning All,

hcandersen - The PIN I had mislaid was on a separate sheet which appears to satisfy most of the information you mention.
Text posted below. I apologise for not posting it earlier with the NtO, unfortunately it was still in the envelope when I scanned the NtO originally.
Thanks for the information though
QUOTE
HOW TO APPEAL TO THE INDEPENDENT ADJUDICATOR
If you disagree with the council's decision you can appeal to the independent adjudicator at the Traffic Penalty Tribunal. The adjudicators
are independent of the council and their decision is final.
You can appeal now by visiting the tribunal's website: www.trafficpenaltytribunal.gov.uk/appeal
The website explains what the adjudicator can consider and how to appeal. There is no charge for appealing and costs are not normally
awarded. The website gives full details. You will need the information in the box below to hand when you begin your appeal.
Notice of Rejection date: 17/10/2018
PCN number(s): XXXXXXXXXX
Vehicle Registration Mark: XXXXXXX
Online Code: XXXXX
You should appeal within 28 days of delivery of this Notice of Rejection
(usually 2 working days after the 'Notice of Rejection" date above - our
website explains this)
If you are unable to appeal online you may request a paper form from the
Traffic Penalty Tribunal by calling 01625 44 55 99 and leaving your name,
address, telephone number, vehicle registration mark and penalty charge
notice number.


cp8759 - I decided to include the page with the revised text ("may" replacing "will") in my evidence. I felt the new version of the letter was almost certainly prompted by me opening the TPT case, and was worthy of mention that the Local Authority have revised their practices.

I have opted for a telephone hearing - I'll report back on the outcome for closure.

Thanks everyone for all your help, it has been much appreciated.

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krenwick
post Wed, 9 Jan 2019 - 15:29
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From: Hampshire UK
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Happy New Year.

Telephone hearing was held today.

It was a straightforward affair - the call was set up and then the Adjudicator and Local Authority Representative were added after a short interval.
The call lasted 18 minutes - the Adjudicator stated she would uphold the appeal on the Will/May ground, but wanted to consider the second ground of the PCN/NtO wording. I received the full decision by email 2 hours later.

I attach the text of the decision below for reference.
QUOTE
Adjudicator's Reasons

This appeal was decided at a telephone hearing on 9 January 2019 attended by Appellant and by Local Authority Representative on behalf the Council.

The PCN was issued because the Council say that Appellant’s vehicle was parked in excess of two hours in this time limited waiting bay in Queen’s Crescent. Appellant raises a number of issues in his appeal. In the event it is the wording used by the Council in their Notice of Rejection of Representations that determines this appeal.

Regulation 6 (1) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that;
  1. Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall-
    1. state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection-
      1. the penalty charge is paid; or
      2. the person on whom the notice is served appeals to an adjudicator against the penalty charge;
    2. indicate the nature of an adjudicator’s power to award costs; and
    3. describe in general terms the form and manner in which an appeal to an adjudicator must be made.

Regulation 22 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 provides that;

“Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the enforcement authority may, if a county court so orders, recover the increased charge as if it were payable under a county court order.”

The point made by Appellant, quite rightly, is that the Notice of Rejection of Representations served by the Council does not reflect this statutory wording. The letter states;

“Failure to pay or lodge an appeal within the period specified above will result in a Charge Certificate being issued by Portsmouth City Council that will increase the Penalty Charge Notice by 50% to £75. If this is not paid legal proceedings will commence to recover the money”.

The use of the word “will” as opposed to the statutory language “may” is fundamental. The statutory language reflects the Council’s discretion to issue a charge certificate or increase the penalty at a particular stage in the progression of the PCN. By using the word “will” it appears to a recipient of a PCN that a charge certificate is the inevitable next step in the event that the PCN is not paid or an appeal is made. It does not reflect the fact that the Council have a discretion to consider each case at that stage The same point is true in respect of the increase in the penalty under Regulation 22 above.

It is not clear to me why the Council did not use the statutory language. Local Authority Representative could give no explanation but has confirmed that the Council have now changed the wording to reflect the statutory discretion. In the circumstances I find that there has been procedural irregularity in the Council’s correspondence and for this reason the PCN is not enforceable I allow the appeal.

I have considered the further point made by Appellant namely the wording used in the Notice to Owner regarding the information given about the “form and manner” of an appeal (Regulation 3(3) of the Representations and Appeals Regulations). I do not regard the wording used by the Council to be substantially inconsistent with the information required under the legislation. The Council have given “in general terms” information regarding the form and manner in which an appeal may be made, namely that the right of appeal is to an independent adjudicator and that the letter rejecting any representations will explain how and when to appeal to the adjudicator.


I'd like to thank everyone for all their help and suggestions here - I doubt whether my original clumsily worded missive would have got the point across as clearly as required.

The final paragraph is disappointing - understandably I concur with hcandersen - and wonder whether a different Adjudicator would have a different view. Were it upheld I believe it would invalidate every Portsmouth PCN which had received an NtO under the current paperwork - with huge implications.

Kind regards and all the best for 2019 everyone.
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cp8759
post Wed, 9 Jan 2019 - 19:03
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The result is broadly what I expected, well done.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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